WHY EOIR 🤡 MUST GO ** CH. CI — Latest CLINIC Court Victory Over Regime Exposes Unholy (Not To Mention Unconstitutional & Unethical) Alliance Between EOIR & ICE Enforcement To Screw Kids! — The Bottom Is Unfathomably Deep @ The Deadly EOIR Clown Show🤡! — “ICE is barred (both at the IJ and BIA levels) from seeking denials of continuances or other postponements to await adjudication of the I-589 filed with USCIS, seeking EOIR exercise of jurisdiction over an asylum claim where USCIS has initial jurisdiction under the terms of the 2013 Kim Memo, or otherwise taking the position that USCIS lacks initial jurisdiction over the class member’s asylum application.”

Michelle Mendez @ CLINIC reports:

Court Grants Class Certification and Amends Preliminary Injunction in USCIS UC Asylum Jurisdiction Litigation

On December 21, 2020, the U.S. District Court in Greenbelt, Maryland granted Plaintiffs’ motion for class certification in J.O.P. v. DHS, No. 19:1944, a lawsuit challenging a May 31, 2019 USCIS policy limiting USCIS asylum jurisdiction over applicants previously determined to be “unaccompanied alien children.” The court certified the following class:

“All individuals nationwide who prior to the effective date of a lawfully promulgated policy prospectively altering the policy set forth in the 2013 Kim Memorandum (1) were determined to be an Unaccompanied Alien Child (“UAC”); and (2) who filed an asylum application that was pending with the United States Citizenship and Immigration Services (“USCIS”); and (3) on the date they filed their asylum application with USCIS, were 18 years of age or older, or had a parent or legal guardian in the United States who is available to provide care and physical custody; and (4) for whom USCIS has not adjudicated the individual’s asylum application on the merits.”

Simultaneously, the court granted in part Plaintiffs’ motion to amend the nationwide preliminary injunction to prevent USCIS’s deference to EOIR jurisdictional determinations and to prevent ICE’s advocacy against USCIS initial jurisdiction. The court denied Plaintiffs’ request to amend the preliminary injunction to prevent USCIS from rejecting jurisdiction based on its expansion of the “affirmative act” exception from the 2013 Kim Memo, instead granting Plaintiffs 21 days to amend their complaint to encompass this claim. Please see CLINIC’s litigation webpage for the court’s December 21, 2020 memorandum opinion and order, as well as other case-related documents.

As amended, the preliminary injunction has the following components:

It enjoins USCIS from relying on the 2019 policy for any purpose. USCIS is barred from “rejecting jurisdiction over any asylum application filed by Plaintiffs and members of the class whose applications would have been accepted” under USCIS’s previous policy, articulated in the 2013 Kim Memo.

It enjoins USCIS from deferring to EOIR jurisdictional determinations. USCIS is barred from “deferring to EOIR determinations in assessing jurisdiction over asylum applications filed by Plaintiffs and members of the class.”

It orders USCIS to retract adverse decisions already made. USCIS must “retract any adverse decision rendered on or after June 30, 2019 that is based in whole or in part on any of the actions enjoined and restrained” as described above.

It enjoins ICE from advocating against USCIS initial jurisdiction. Where a class member’s asylum application is pending before USCIS, ICE is barred (both at the IJ and BIA levels) from seeking denials of continuances or other postponements to await adjudication of the I-589 filed with USCIS, seeking EOIR exercise of jurisdiction over an asylum claim where USCIS has initial jurisdiction under the terms of the 2013 Kim Memo, or otherwise taking the position that USCIS lacks initial jurisdiction over the class member’s asylum application.

Counsel for the Plaintiffs will continue to provide updates to practitioners as this litigation progresses. Advocates for clients: (1) who receive adverse decisions dated on or after June 30, 2019 that violate the terms of the amended preliminary injunction; or (2) in whose removal proceedings ICE advocates in violation of the amended preliminary injunction should contact Plaintiffs’ counsel Mary Tanagho Ross, mross@publiccounsel.org, and Kevin DeJong, KDeJong@goodwinlaw.com.

Thank you,

Michelle N. Mendez | she/her/ella/elle

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

******************

Thanks for another “great news” report, Michelle, my friend!

Finally, at long last, some Article III judges are “calling out” the highly unethical and glaringly unconstitutional “partnership” between ICE enforcement and EOIR to screw asylum seeking kids.

The EOIR White Nationalist agenda 🏴‍☠️ of limiting legitimate continuances and administrative closing to mindlessly, improperly, and inefficiently proceed in Immigration Court on matters that should be resolved through USCIS adjudication is not only thoroughly corrupt, but also totally counterproductive, as uncontrollably mounting EOIR backlogs and increasing Article III Court interventions have shown.

And, the completely unconstitutional and unethical call early on by corrupt former AG Jeff “Gonzo Apocalypto” Sessions 🤮 for “his wholly owned EOIR judges” to join their “ICE enforcement partners” in racist immigrant bashing initiatives should long ago have been a basis for the Article IIIs to declare this entire ungodly mess in the Immigration Courts to be unconstitutional under the 5th and 14th Amendments.

Thanks to you and other members of the NDPA, Michelle, for all you have done and continue to do to expose corruption, illegality, and wrongdoing in the regime’s sprawling, out of control, immigration kakistocracy! Now, we need you and other members of the NDPA like you on the Federal Bench to short circuit all the BS and get sane, legal, humane policies and “best interpretations and practices” in place “from the git go” and then enforce them on recalcitrant bureaucrats.

Racial Justice in America is, as it must be, one of the top Biden-Harris priorities! 🇺🇸 It can only be achieved if the White Nationalist mess at EOIR and ICE is cleaned up and replaced with experts committed to due process, fundamental fairness, and human rights in charge! There must be new, dynamic, and courageous leadership committed to controlling and reforming the actions of civil servants throughout government who furthered Stephen Miller’s vile racist agenda unlawfully and immorally targeting immigrants of color, their families, and their communities. “Injustice anywhere is a threat to justice everywhere” (MLK, Jr.).

Time for the NDPA ⚖️🗽🧑🏽‍⚖️👩‍⚖️ to replace the EOIR Clown Show🤡!

Due Process Forever!

PWS

12-22-20

DUH OF DA DAY: White Nationalist Agenda, Anti-Asylum Gimmicks, Grotesque Mal-Administration Leads To Longer Waiting Times @ Disastrously Dysfunctional EOIR 🤮 — Biden-Harris Administration Must End America’s Disgraceful Star Chambers ⚰️!

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Star Chamber Justice — “Justice”
Star Chamber
Style

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

Transactional Records Access Clearinghouse

Immigration Court Case Completion Times Jump as Delays Lengthen

FOR IMMEDIATE RELEASE

Not surprisingly, Immigration Court closures and delays in hearings for courts that are conducting hearings have drastically reduced the number of completed cases for the first two months of this fiscal year as compared with prior years at the same time.

New cases continue to drastically outpace case completions. In October and November 2020, the Immigration Courts received 29,758 new filings. This is fewer filings than usual, but still almost twice the 15,990 cases they completed.

As a result, the court’s active backlog at the end of November 2020 reached 1,281,586. This is up 18,821 cases in just the last two months. Adding to the court’s workload are not only new filings, but previously closed cases that have been reopened, remanded for reconsideration, or otherwise placed back on the court’s docket.

Disposition times for closed cases have also shot up this year. Cases disposed of in FY 2020 took on average 460 days. During the first two months of FY 2021, the courts disposed of a much smaller number of cases, but the disposition times were much longer at an average of 755 days—or 64 percent longer. The longest disposition times were found in the Cleveland Immigration Court where it took on average 1,617 days.

For the latest disposition times at each Immigration Court read the full report at:

https://trac.syr.edu/immigration/reports/634/

To examine a variety of Immigration Court data, including asylum data, the backlog, MPP, and more now updated through November 2020, use TRAC’s Immigration Court tools here:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive a notification whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1

Follow us on Twitter at:

https://twitter.com/tracreports

or like us on Facebook:

https://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors

Transactional Records Access Clearinghouse

Syracuse University

Suite 360, Newhouse II

Syracuse, NY 13244-2100

315-443-3563

trac@syr.edu

https://trac.syr.edu

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*******************

As mom used to say, “Haste makes waste.” Taking more time to decide cases would be perfectly defensible if it actually produced useful deliberation, thoughtful scholarship, and just and fair results. But, this currently is a system that must limit its intake while it develops the expertise, scholarship, analytical skills, quality control mechanisms, and best practices necessary for judicial efficiency that complies with due process and fundamental fairness (not to mention basic asylum law). That’s a “complete rebuild.”

Then, once that system is running well, it could be methodically and rationally expanded, if actually necessary. But, aimlessly building more assembly lines producing defective products and then ratcheting up the speed will, not surprisingly, produce nothing except more dangerous and defective products.

Not exactly rocket science that a bunch of hacks implementing racist policies, trying to speed up the assembly line, engaging in “Aimless Docket Reshuffling,” eradicating due process, discouraging fairness and deliberation, eliminating their own jurisdiction to control the dockets, and denying everything while mindlessly throwing more resources into a broken beyond belief “(non)system” at war with its own essential employees and those whom it (dis)serves would produce total chaos and dysfunction. Also, throw in lack of best technology and overt disregard for public health and safety.

And, while this is going on, an undisciplined, out of control, and for all practical purposes worse than useless ICE continues to pour new cases into the maelstrom at twice the rate it can get turn them out! As the late NY Met’s Manager Casey Stengel once said, “Can’t anyone here play this game?”

This is an ongoing and increasingly visible unmitigated national disgrace. It’s also an abuse of public funds and a betrayal of the public trust — fundamentals of sound government.

And, it won’t be “swept under the table” in the finest tradition of incoming Administrations. As I’ve said before, the Biden-Harris Administration either fixes EOIR🤡 immediately with some new faces with real expertise, or it “owns” it. And, the current White Nationalism infested atrocity and den of “malicious incompetence” at EOIR🤡 is not something an Administration striving to achieve equal justice and racial reconciliation should want to own!

Due Process Forever!

Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go!

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

PWS

12-22-20

🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️)

https://www.nytimes.com/2020/12/20/opinion/trump-justice-department-lawyer.html?referringSource=articleShare

. . . .

Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.

. . . .

*******************

Read the full op-ed at the link. That’s right Erica. Lack of ethics, morality, and failing to uphold the Constitution and the rule of law have consequences. Helping to “custom design” obvious pretexts for racist and hate inspired policies, for consumption by right-wing judges who only seek “cover” for going along to get along with fascism, is wrong. Duh!

It’s no surprise that the clearly unconstitutional and racially and religiously bigoted “Travel Ban,” willingly embraced by an intellectually dishonest and morally compromised Supremes majority, was first on the list in Erica’s “confession.”

But, don’t expect any apologies from the vast majority of Trumpist lawyer/enablers who violated their oaths of office or from the big time law firms (one where I was formerly a partner) who have granted them undeserved refuge at fat salaries! Nor should we expect large-scale redemption from the legions of Government lawyers in DOJ, DHS, and elsewhere who will assert the “Nuremberg defense” of “just following orders.” But, that doesn’t mean that the rest of us can’t demand some accountability for participation in what are essentially “crimes against humanity.”

Erica’s article largely echoes what my friend and colleague Judge Jeffrey Chase, many of our colleagues in the Round Table of Former Immigration Judges, ⚔️🛡 and numerous members of the New Due Process Army (“NDPA”) have been saying throughout this Administration. Indeed, I frequently have noted that the once-respected Solicitor General’s Office and EOIR operated as basically “ethics free zones” under the disgraced “leadership” of Sessions, Whitaker, and Barr.

It’s also why the the Biden-Harris team that takes over at DOJ must:

immediately remove all the current “executives” (and I use that term lightly) at EOIR as well as all members of the BIA and transfer them to positions where they can do no further damage to asylum seekers, migrants, their (often pro bono or low bono) lawyers, or the rest of humanity;
replace them with qualified individuals from the NDPA; and
be circumspect in eventually making retention decisions for Immigration Judges, taking into account public input as to the the degree to which each such judge’s jurisprudence during the Trump kakistocracy continued to reflect adherence to constitutionally required due process and fundamental fairness to migrants, respect for migrants and their representatives, best practices, and interpretations that blunted wherever reasonably possible the impact of the kakistocracy’s xenophobic, racist, White Nationalist policies.

American justice has been ill-served by the DOJ and the Immigration Courts over the past four years. That’s something that must not be swept under the carpet (as is the habit with most incoming Administrations).

The career Civil Service overall, and particularly complicit and often ethics-free government lawyers, failed to put up the necessary resistance to an overtly anti-American regime with an illegal and immoral agenda. Lives were lost or irreparably ruined as a result. That’s a big-time problem that if not addressed and resolved will likely make continuance of our national democratic republic impossible.

⚖️🗽🧑🏽‍⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴‍☠️👎🏻!

PWS

12-21-20

START YOUR HOLIDAY 🎄 WEEK OFF RIGHT WITH THE “DUH” ARTICLE OF THE DAY: Bad Things Happen 🤮☠️⚰️ To Nations That Put Criminals, Incompetents, & Toadies (a/k/a “The Kakistocracy”) In Charge — “There is the dereliction of duty in the response to the pandemic, and then there is the original dereliction of duty in placing a dime-store gauleiter like Stephen Miller anywhere close to a center of power.”

https://apple.news/Au2L4FahYQKqPiFqdxmwdaA

Charles P. Pierce in Esquire:

“Spirit! are they yours?” Scrooge could say no more.

“They are Man’s,” said the Spirit, looking down upon them. “And they cling to me, appealing from their fathers. This boy is Ignorance. This girl is Want. Beware them both, and all of their degree, but most of all beware this boy, for on his brow I see that written which is Doom, unless the writing be erased.”

—A Christmas Carol, Stave III

The Ghost of Grifters Not Yet Past was everywhere over the weekend. In the New York Times, we read about how the Ghost had arranged for a meeting of the political Chronic Ward in the White House. In the Washington Post, we read about how the Ghost had visited his feral children, Ignorance and Want, upon the land by giving them national political leaders who couldn’t pour piss out of a boot if the instructions were on the heel, and, worse, had no desire to learn how, even in the midst of the greatest public health crisis in a century.

While the Times’ account of the Mad Hatter’s seditious tea party is the flashier story, it is the Post’s deep spelunking into the administration*’s brutal (and quite deliberate) mishandling of the pandemic that is more likely to resound in historical memory as the most criminal dereliction of duty in the history of the American presidency. By comparison, Herbert Hoover at the onset of the Great Depression and James Buchanan as the nation slid toward the Civil War were positive pikers in their disregard for the office they held and the country they were chosen to lead.

. . . .

And then there’s the Dauphin Prince, who apparently had some power and almost no respect, possibly because he was marginally less of a fck-up than everyone else was.
. . . .

***************

Read Charlie’s complete article at the link.

The Moron-in-Chief, the Party of Putin, and their rabidly anti-American followers and fellow travelers must have exceeded Vladimir’s wildest expectations.

And, at what a bargain price: no need for huge investments in the military, expensive weapons of mass destruction, complicated spy networks, or even major payment of bribes. Just find enough greedy, selfish, delusional, resentful, racist, dim-witted folks willing to betray our nation. Then, invest modest amounts in misinformation, flattery, fanning White Supremacy, and cyber espionage, and “puff” you’re inside the U.S. security, intelligence, and essential infrastructure system with your traitors and dupes installed throughout government and society. Heck, you own a major political party and didn’t even have to contribute billions to do it!

30 days and counting till the end of the kakistocracy and the return of hope, sanity, and competence to our national government. Let’s just hope that it’s not too late for those of us who still believe in America and for our world that is hurting for rational, far-sighted, values-based leadership!

PWS

12-21-20

🏴‍☠️👎🏻WITH KAKISTOCRACY HEADING INTO FINAL MONTH, BIA CONTINUES TO ISSUE NEGATIVE GUIDANCE ON EXPERT TESTIMONY — Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020)

The Board of Immigration Appeals has issued a decision in Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020).

(1) Expert testimony is evidence, but only an Immigration Judge makes factual findings.

(2) When the Immigration Judge makes a factual finding that is not consistent with an expert’s opinion, it is important, as the Immigration Judge did here, to explain the reasons behind the factual findings.

PANEL: MULLANE, CREPPY, and LIEBOWITZ, Appellate Immigration Judges

OPINION BY: Judge MULLANE

**********************

So, with the overt politicization and precipitous decline in reliability of DOS Country Reports, expert opinions have become of increasing importance in asylum cases. And, the are many great experts and groups providing alternatives to the skewed DOS reports these days.

So, what’s really needed in NOT more encouragement for IJs, many of whom lack real asylum expertise, to find ways to downgrade or dismiss experts. What is essential, is new guidance: 1) honestly recognizing that this Administration’s anti-asylum and inappropriate ideological agendas have undermined the credibility of DOS reports; and 2) describing ways in which IJs should be using alternatives, like expert testimony and reports, to support grants of protection to applicants who need and deserve them.

Credible applicants are supposed to be given the benefit of the doubt. Today’s EOIR has “made mincemeat” of that principle.

It is time to rethink the evidence so often submitted and relied upon in asylum claims, to dial back the corroboration demands, and to return to a core principle of refugee law – the need to afford asylum seekers the benefit of the doubt. We need a better way to establish asylum eligibility and challenge stereotypes.

https://clinics.law.harvard.edu/blog/2020/07/refugee-eligibility-challenging-stereotypes-and-reviving-the-benefit-of-the-doubt/

Appropriate guidance is not going to happen until the present BIA is replaced by real appellate judges who are experts on asylum law, due precess, fundamental fairness,and who have experience representing asylum seekers in the real world. Hopefully, that long overdue day, is within sight: “Hey hey, ho, the EOIR Clown Show has got to go!

Due Process Forever!

PWS

12-20-20

KAKISTOCRACY WATCH: ANOTHER RAT 🐀 FLEES THE SINKING SHIP🆘: Billy The Bigot Jumps Ship Before Captain Queeg 🤯Can Fire Him!

Barr Departs — Lowering The Barr by Randall Enos, Easton, CT
Republished By License

******************

Good riddance, although too late for the lives and futures of many of his victims!☠️⚰️👎🏻🐀🤮

Due Process Forever!

PWS

12-16-20

NAN ARON OF ALLIANCE FOR JUSTICE⚖️SPEAKS OUT ON NEED FOR BIDEN-HARRIS ADMINISTRATION TO LOOK AT BROADER SOURCES FOR FEDERAL JUDICIAL CANDIDATES 🧑🏽‍⚖️👨🏻‍⚖️👩‍⚖️!

https://www.nytimes.com/2020/12/11/us/progressive-groups-biden-judges.html?referringSource=articleShare

Carl Hulse reports for the NY Times:

. . . .

In addition to the candidates put forward by Mr. Feingold’s group after a nationwide effort, another coalition of organizations has provided the transition with over 100 names of candidates developed over the past several months.

“The process started earlier so we would be ready,” said Nan Aron, the president of the Alliance for Justice, which in cooperation with nearly three dozen other groups has given the Biden team a list of more than 100 potential nominees. “We are pushing hard for them to make judges a priority.”

. . . .

The progressives say that Democrats must use whatever leverage they can to press their nominees.

“Our view is the administration should push to make judges a critical part of the conversation,” Ms. Aron said. “The Democrats will need to fight for the judges they want.”

Though acknowledging winning confirmations will be difficult — certainly compared with the free hand Republicans have had when controlling both the White House and the Senate — Mr. Feingold said he was optimistic that Mr. Biden, using the available political tools and with strong progressive support, could get his picks on to the courts.

“I see opportunity here,” Mr. Feingold said.

****************

Thanks Nan! Read the rest of the article at the above link!

I just hope that this time around, unlike the Obama Administration, the Biden-Harris Team focuses on what former Senator Russ Feingold of the American Constitution Society might call a “golden opportunity” for broadening and improving the Federal Judiciary.

That’s, of course, the “judiciary” at the Executive Office for Immigration Review (“EOIR”) which operates (and I use this term loosely, given the disgraceful, deadly dysfunction sowed by the outgoing regime) entirely within the Executive Branch at the DOJ. No need to get Mitch McConnell’s sign off on these judges! (We ultimately need a fully independent Article Immigration Court, which will take legislation.)

The mess at EOIR needs immediate attention and aggressive due process reforms. This is no “small opportunity.” There are more than 500 Immigration Judgeships and another two dozen critically important Appellate Judgeships at the Board of Immigration Appeals (“BIA”) at stake here.

Together, this “under the radar administrative judiciary” exercises essentially life or death authority over millions of individuals and affects the lives and futures of millions more American families, employers, and communities from coast to coast. While most of the BIA’s decisions are reviewable in the Circuit Courts of Appeals, the BIA’s nationwide authority to set precedents and policies that determine not only the future of millions of humans, but also the conduct of DHS (which has been highly problematic) gives it power that in some ways exceeds that of any Federal Court short of the Supremes.

Sadly, the independence, expertise, and due process performance of EOIR has deteriorated steadily over the past three Administrations before going into a “death spiral” under the Trump/Miller/Sessions/Barr White Nationalist kakistocracy.

The exceptionally well qualified judicial candidates and competent legal administrators to fix the EOIR disaster are out here in the New Due Process Army. There is no area of judging that combines intellectual challenge, applied due process, human relations, practical problem solving, historical perspectives, ethical norms, and fundamental human values the way that the Immigration Court experience does!

A new, due process oriented, expert, diverse, representative immigration judiciary at EOIR will not only be a model for best practices for all levels of the Federal Judiciary, but will also provide an exceptional source of experienced candidates for the Article III Judiciary and future public policy positions (the massive failures in these areas over the past four years are an example of why we must do better if we want to save lives, promote equal justice for all, and enhance our democracy). As I always tell my Georgetown Law students, if you can win in Immigration Court, everything else you do in law will be a “piece of cake!”

This is more than just “an opportunity.” Human lives are at stake! National values and the future of the rule of law in America hang in the balance! This isn’t “optional,” nor is it a “back burner” issue! Reforming the Immigration Judiciary is a national imperative that we must insist upon!

Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go! Let the Biden-Harris Team know!

Due Process Forever!⚖️🗽👍🏼

PWS

12-13-20

HON. “SIR” JEFFREY S. CHASE⚔️🛡: WHAT DOES GOVERNMENT CORRUPTION👎🏻, EXTREME INTELLECTUAL DISHONESTY☠️, & WHITE NATIONALISM 🏴‍☠️ LOOK LIKE? — EOIR!🤮— Repeat After Me: “Hey Hey, Ho, Ho, The EOIR Clown Show🤡 Has Got To Go!”

https://www.jeffreyschase.com/blog/2020/12/12/eoirs-new-math

EOIR’s New Math

I’m going to use a baseball analogy here (with apologies to non-fans): DJ LeMahieu finished this past season as the American League batting champion. Imagine if he were to walk in to negotiate a new contract with the New York Yankees, only to be offered the minimum permissible contract because of his disappointing performance. When a shocked LeMahieu would respond “but I hit .364 last season!,” the Yankees general manager would reply “Not even close.”

The Yankees would explain that they are no longer employing the traditional method of calculating batting average, but have come up with a “better” approach. A confused LeMahieu would note that he had 71 hits in 195 at bats. The Yankees would respond that he appeared at the plate 216 times, if one includes “other” outcomes, such as walks, hit-by-pitch, and sacrifices. LeMahieu would point out that those have not counted in calculating batting average before; the Yankees would respond “Well, now they do.” The Yankees would next point out that LeMahieu had not played in 12 of the team’s games last season, due to injury. The team therefore estimated another 48 plate appearances that the player could have had, and calculated those into his batting average as “non-hits.” Lastly, the team would note that the season was shortened by 102 games due to the pandemic, covering another 408 plate appearances. By the time they were done, the Yankees would conclude that LeMahieu had actually batted .107, certainly not Major League quality hitting.1 The Yankees would add that few if any teams would even be negotiating with a .107 hitter, much less offering them a contract.

The above purely fictitious, imaginary scenario is offered to illustrate EOIR’s very real current approach to its published asylum statistics. The Trump Administration has from day one taken the position that all asylum claims are false in order to justify its inhumane treatment of genuine refugees. However, such a claim is undermined when the Justice Department’s own judges are granting asylum in those very cases. It was therefore up to EOIR to offer the type of “alternative facts” that are a trademark of this administration.

EOIR has for many years published an annual Statistical Yearbook, which has included asylum grant rates nationally for all immigration courts. But recently, EOIR put out a chart entitled “Executive Office for Immigration Review Adjudication Statistics,” and subtitled “Asylum Decision Rates.” The top half of the chart contains a graph that is only slightly less difficult to follow than Rudy Giuliani’s latest election conspiracy theories. Below that is a chart containing asylum grant rates for the years 2008 through 2020.

Interestingly, the grant rates listed on this latest chart (using what I’ll call EOIR’s new “Larger Inclusion Asylum & Refugee Statistics,” or “LIARS” for short) are strikingly different than the numbers in the EOIR Yearbooks:

Year EOIR Statistical Yearbook LIARS Figures

2008 45% granted 23.68% granted

2009 48% 23.92%

2010 51% 25.34%

2011 52% 31.36%

2012 56% 30.55%

2013 53% 24.93%

2014 49% 22.84%

2015 48% 18.70%

2016 43% 15.80%

There is quite a difference between a grant rate of 48 percent or 18.7 percent for 2015. So how were the LIARS figures derived?

Well, in addition to asylum grants and asylum denials (i.e. the only two figures that should matter), the LIARS figures added two more categories to the equation. The first new category is “Other.” A footnote explains (if that’s the correct word) that “Asylum Others have a decision of abandonment, not adjudicated, other, or withdrawn.” The explanation that “other” includes “other” didn’t clear things up for me. Nevertheless, it seems that these were cases that did not involve either a grant or a denial of asylum, and thus shouldn’t be part of the calculation, much like walks, hit by pitch, and sacrifices are not considered in batting average calculations. The reason those outcomes don’t count in baseball is because they are not indicative of the batter’s ability to get a hit, since no opportunity was available. Similarly, an asylum case that did not proceed to an actual decision is not indicative of the merits of the application. For example, an asylum applicant who subsequently became eligible for a faster, easier path to legal status because they married a U.S. citizen or won the visa lottery in no way indicates that their asylum claim wasn’t meritorious.

The second new LIARS category involves cases that were administratively closed. This is the equivalent of games not played in the baseball analogy. A case administratively closed is taken off the docket and not tried; it’s a hearing not held. EOIR is now choosing to consider it as a “non-grant” in its calculations, thus reducing the grant rate to the same degree as if the hearing was held and asylum was denied. In 2015, the two new categories that shouldn’t have been considered equaled 60.94 percent of the total cases considered by LIARS (comparable to the 102 games not played in 2020 by the Yankees, which constitutes 63 percent of a normal length season). To summarize, the real (Statistical Yearbook) grant rate of 48% in 2015 was derived based on 8,246 asylum grants out of 17,079 total asylum cases decided that year. The LIARS grant rate of 18.70 considered 8,076 asylum grants (i.e. 170 less than listed in the 2015 Statistical Yearbook) out of a total of 43,189 cases consisting of grants, denials, other, and administratively closed hearings in which the asylum claim was never heard. I have no idea how LIARS reduced the number of grants in 2015 by 170 cases.

The EOIR Statistical Yearbook contains an additional chart which includes cases in which withholding of removal was granted. In 2015, fifty-five percent of asylum applicants were granted either asylum or withholding of removal. The LIARS figures make no mention of withholding of removal. If grants of that alternative relief were hidden in the “Other: other” category, they would have been counted as cases in which asylum was not granted, which would lower the grant rate in the same way as a denial.

This might all seem like mere pettiness on EOIR’s part, but the administration uses these numbers in press releases (such as its infamous “Myths vs. Facts” sheet which remains posted on EOIR’s website). It also emboldens the administration to claim it is merely “increasing efficiency” in passing new rules to quickly deny and deport asylum seekers by “efficiently” rendering all of them ineligible for relief.2 Such a statement depends on an underlying belief in the illegitimacy of the claims of those being quickly denied and deported, an illegitimacy that seeks support from the doctored numbers. Where the true numbers show a much higher rate of asylum claims granted, how could efficiency be used to justify sending actual refugees home to die?3

I wonder who came up with this new system. As I don’t know the answer, let’s call them “other.” Maybe they can spend the final weeks until January 20 devising a new chart, titled “Who should no longer be a government employee as of January 21, 2021?” To get them started, here are a few easy ones: (1) EOIR Director James McHenry: 100%. (2) Every EOIR manager who enabled him over the past four years: 100%. (3) Other: 100%.

Notes:

The infamous “Mendoza Line,” which denotes a batting average of .200, is usually considered “the offensive threshold below which a player’s presence on a Major League Baseball team cannot be justified,” according to Wikipedia.

The administration’s latest rules, scheduled to take effect on January 10, would make the manipulation of asylum grant rates unnecessary as to future claims, as virtually no one would remain eligible for such relief. One can only hope that courts will block those rules until they can be withdrawn by the Biden administration.

To be clear, no grant rate would ever justify sending even a single refugee to their death in the name of efficiency.

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Reprinted with permission.

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A test of the Biden-Harris Administration’s seriousness about equal justice and restoring human dignity to immigrants will be how quickly the members of the EOIR Kakistocracy, including the BIA, are removed from their positions and replaced by real judges and judicial administrators. That is, “practical scholar-experts” with demonstrated immigration/human rights expertise, applied due process experience, and the guts and integrity to stand up for the rights of individuals who have been unfairly victimized by a vile, White Nationalist, nativist agenda!

Not rocket science!

Due Process Forever!

PWS

12-12-20

MAJOR CONTRAST: AS EOIR CLOWN 🤡☠️⚰️SHOW CEMENTS ITS ROLE AS NOTORIOUS HUMAN RIGHTS ABUSER 🏴‍☠️🤮, THE ROUND TABLE 🛡⚔️ HELPS SAVE LIVES 🗽 AT EVERY LEVEL OF OUR SYSTEM⚖️!

Hon. Jeffrey S. “Sir Jeffrey” Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

More great news from Sir Jeffrey:

Hi all: We filed an amicus brief with the Third Circuit last year in a domestic violence withholding and CAT claim from Mexico. The BIA acknowledged that the petitioner was beaten four or five times a month by her abuser; was raped by him several times, and then lost her job as an agro-engineer with a government agency in Mexico after her abuser beat her violently in front of her co-workers, and her employer told her she could not publicly represent the agency with the resulting bruises on her face. The BIA further recognized that her abuser was able to locate her when she tried to relocate within Mexico. And yet withholding was denied on nexus, and CAT denied on government acquiescence grounds.

A number of other groups, including CGRS, filed amicus briefs as well, and OILu moved to remand under favorable terms. Anju Gupta at Rutgers, who represents the petitioner, said that today, the IJ (who was very much made aware of all of the amicus briefs) granted CAT relief.

The email said that the petitioner (who was previously detained at Elizabeth, NJ) is now in Mexico (I’m not clear on the details), but will hopefully be able to return soon based on the grant.

It’s great that we continue to make a positive difference.

Best, Jeff

**********

Wow! What a great holiday present!

What a great group with a great mission of promoting due process, advocating for equal justice, and saving lives! Every member of the Round Table has saved lives by standing up for the human dignity and legal rights of those who came before us in Immigration Court. And, we continue to “fight the good fight,” in every possible way at every level of the justice system!

Due Process Forever!

PWS

MAKING MY CASE! — EOIR’S ATROCIOUS “ASYLUM DEATH PACKAGE”☠️⚰️ SHOWS WHY NEXT AG MUST SUSPEND REGS, IMMEDIATELY REPLACE EOIR CLOWN 🤡 SHOW!

Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Grim Reaper — Recent Barr Appointee Prepares to Take Bench
Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/advance-copy-of-eoir-final-rule-procedures-for-asylum-and-withholding-of-removal-credible-fear-and-reasonable-fear-review#

“Over 87,000 comments were filed. DOJ and DHS ignored them. This is Steven Miller’s final FU to us all,” says my friend Dan Kowalski over at Lexis Nexis Immigration Community.

******************

Man, the ink was barely dry on my speech last night to Houston AILA, when EOIR graphically illustrated my points about:

why the EOIR Clown Show/Kakistocracy has got to go; and
why we finally need an Attorney General with a human rights background who will act immediately to suspend these absurd and unlawful regs and remove the “perps” of this “crime against humanity” at EOIR and their accomplices.

https://immigrationcourtside.com/2020/12/10/%e2%9a%96%ef%b8%8f%f0%9f%97%bdhouston-weve-got-a-problem-its-called-eoir-its-time-for-the-clown-show-%f0%9f%a4%a1-to/

It also illustrates why the new DHS Secretary needs to do a thorough housecleaning and reorganization of the immigration kakistocracy that has aided and abetted Miller in his neo-Nazi campaign against immigrants of color.

Also, it shows why the NDPA and the human rights advocacy community must speak out and be heard on who should be the next AG and what his or her priorities must be in immediately acting on immigration and human rights as the keys to civil rights and equal justice for all!

This issue can’t be “back burnered” as past Dem Administrations have done! An attack on justice and humanity for asylum applicants is an attack on justice for all of us. We need immediate, decisive action to restore human values and human dignity to our justice system!

That requires a real Immigration Court, with real independent judges unswervingly committed to due process, equal justice, and human rights, not the current “Star Chamber Charade.” 🏴‍☠️🤮 The Immigration Courts will be under the control of the Biden Administration. Fixing them must be a top priority!

As I told the Transition Team about EOIR, “Either you fix it immediately, or you own it.”

And this is not a disgraceful mess that I would want to own if I were the Biden-Harris Team. Particularly if I wanted more goodwill in the Hispanic and African American (African asylum seekers are one of the groups targeted on racial grounds by Miller and the current regime) communities in future elections!

Due Process Forever!

PWS

12-10-20

⚖️🗽“HOUSTON, WE’VE GOT A PROBLEM!” — It’s Called “EOIR” & It’s Time For The Clown Show 🤡 To Go! — Here’s My Speech Last Night To The Houston Chapter of AILA!

Good evening, Houston! Hope you and yours are staying well. Thanks for joining me to help plan the next big battle for our New Due Process Army (“NDPA”).

I’m retired, so I can tell it like it is: no party line, no bureaucratic doublespeak, no BS, just the truth, the whole truth, and nothing but the truth. Nevertheless, I do want to hold AILA, your organizers, you, and anyone else of any importance whatsoever harmless for the following remarks, for which I am solely responsible. To borrow the words of country music superstar Toby Keith, “it’s me baby, with your wakeup call!”

And, perhaps to state the obvious: “Houston, we’ve got a problem!” The problem is EOIR, it’s threatening our entire justice system, and I need your help to fix it!

42 days and counting left in the kakistocracy – governance by the worst among us. We got the job done in November. But, by no means is the fight to preserve our justice system and save our nation over. Indeed, in many ways it’s just beginning!

I’m dividing my presentation this evening into two parts. First, I’m going to take you from one of the highlights of my career, the Kasinga decision in 1996, to the depths of the current unmitigated disaster in our Immigration Courts. I’ll explain how policy-making by myth, inadequate leadership, followed by malicious incompetence snuffed out hope and progress and replaced it with despair and return to the dark days of Jim Crow.

Then, I’m going to tell you what needs to be done to restore and re-energize due process at EOIR, why our time is now, and why your voices as members of our New Due Process Army (“NDPA”) need to be heard loud and clear by the incoming Biden-Harris Administration.

* * * * * * *

We also need an AG who is advocate for human rights and immigrants’ rights. Additionally, there is a pressing need for immigration/human rights experts from the NDPA in authoritative positions in other parts of the DOJ, like the SG’s Office, OIL, and the Office of Legal Policy, as well as, of course DHS, ORR, State, and even CDC.

Remember: This isn’t “rocket science!” It’s just common sense, “practical scholarship,” best practices, moral courage, humanity, and respect for human dignity! All of which you and other members of the NDPA have in abundance! Most of all, it’s about getting the right practical experts in the key positions within the incoming Administration.

Unlike the Article III Courts, the “EOIR Clown Show” can be removed, replaced, and justice at all levels improved just by putting the right experts from the NDPA in charge right off the bat. Because these are Executive positions that do not require Senate confirmation, Mitch McConnell’s permission is not required.

Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless frustration, death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of national pride, not a deadly and dangerous national embarrassment!

Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE! It only becomes “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that often has plagued past Democratic Administrations on immigration, human rights, and social justice.

It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA experts, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!

No more clueless politicos, go along to get along bureaucrats, unqualified toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their hard-working representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at EOIR!

Get mad! Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost, money wasted, and futures ruined! It won’t get done if we don’t speak out and demand to be heard! Let your voices ring out from banks of the Rio Grande to the shores of the Potomac, from the Gulf Coast to the centers of Government!

This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable!

Repeat after me: “Hey hey, ho ho, the EOIR Clown Show has got to go!” Then pass it on to the incoming Administration! Let them know, in no uncertain terms, that you’ve had enough! More than enough!

Thanks for listening, have a great evening, stay well, take care of your families, and, always remember the NDPA rallying cry, Due Process Forever!

Read my complete speech here:

HOUSTON

And, here’s the zoom video recording, courtesy of Roberto Blum, Esquire, of Houston AILA:

https://zoom.us/rec/share/s607ygH0DZ4E_tQqcbs_6w1nrdDjfcoY9JWlIT7FAQRKm_mdFu5iGNP5ukVWjXLI.Y_uTqJUfps7uq9St?startTime=1607558497000

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🤮EOIR’S STUPIDITY IN MOTION: One of the audience questions last night concerned the recent mindless “scheduling orders” issued by EOIR bureaucrats masquerading as “judges.” These were the subject of immediate harsh congressional criticism, as I noted yesterday. https://immigrationcourtside.com/2020/12/09/kakistocracy-korner%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8f-eoirs-latest-maliciously-incompetent-%f0%9f%a4%ae-attack-%e2%98%a0%ef%b8%8f-on-kids-earns-well-deserved-congressional-ire/

Basically, with over 1.3 million backlogged cases already on the docket, EOIR has chosen to expedite and prioritize newer asylum cases where individuals have not had time to obtain attorneys and properly prepare over hundreds of thousands, perhaps one million, of “ready to try” backlogged cases. Some of the latter undoubtedly date back to my time on the bench!

Rather than working with the private bar and ICE on a rational plan to get the cases that are ready to try heard, EOIR has chosen to rush ahead by putting “not ready for prime time” cases in front of those that have been waiting, some for many years. Apparently, the plan is to then dismiss the cases if completed asylum applications aren’t filed by the arbitrary, artificial, and unreasonable deadlines.

Remarkably, attorneys were told that if they couldn’t meet these arbitrary, unreasonable deadlines, they should “file motions.” That will 1) throw more useless paper into an un-automated system already drowning in it; 2) undoubtedly lead to wildly inconsistent adjudications among judges; and 3) generate unnecessary appeals and possible Federal court actions. Some unrepresented individuals likely will be wrongfully deported because they don’t understand what’s happening.

This is “Aimless Docket Reshuffling” in action. A great example of why “The EOIR Clown Show 🤡 has got to go!” Sooner, not later!

Let your voices be heard!

I hear lots of talk about the importance of civil rights from the Biden team. But, as we well know, “immigrants’ rights are civil rights.”

Civil rights reforms and justice for African Americans, Hispanic Americans, and other minorities will continue to be an unrealized dream unless and until we fix the broken and biased Immigration Court system: “The home of ‘Dred Scottification’ and the ‘21st Century Jim Crow.’” As MLK, Jr. once said, “Injustice anywhere is a threat justice everywhere.”

After three decades of abject failure and “deterioration of justice at Justice,” time for some progressive new leadership at the DOJ that takes those words to heart and “connects the dots” between the continuing abuses of Black Americans in the streets and the disgraceful abuses inflicted on immigrants of color and their representatives in our 21st Century “Star Chambers” called Immigration Courts that operate within the DOJ. In my mind, appointing officials who were part of not solving the problem in the past, even if they “know” the DOJ, is not going to get the job done.

We need new faces in leadership at DOJ! That means individuals in leadership positions who have demonstrated a commitment to equal justice for all! Experts in justice rather than political and bureaucratic retreads! Time to value “real life” experiences and achievements over past participation in managing a failed and floundering DOJ bureaucracy that has been “AWOL” on equal justice and immigrant justice for far too long.

Yes, we need a “good manager” at Justice. But, a manager who has seen the problems with the justice system first-hand, through litigation or advocacy against the regime’s abuses, particularly in the Immigration Courts and with racist and unconstitutional immigrant bashing “policies.” A leader familiar with the problems at Justice, but not part of those problems in the past. Sure, that person will need personnel experts and some “bureaucratic insiders” to get the job done. But, they should be part of the team, not driving the train.

There will be no justice for all Americans without justice in our Immigration Courts! So far, I haven’t heard a direct acknowledgement and embracing of that simple fact from the Biden-Harris team. That’s a matter that should be of concern to all of us in the NDPA!

That’s why it’s so important for our voices to be heard now! Before the “train leaves the station” without the NDPA on board, which is precisely what happened in 2008!

Due Process Forever!

PWS

12-10-20

KAKISTOCRACY KORNER🏴‍☠️ — EOIR’S LATEST MALICIOUSLY INCOMPETENT 🤮 ATTACK ☠️ ON KIDS EARNS WELL-DESERVED CONGRESSIONAL IRE!– “These new deadlines established by the Executive Office for Immigration Review (EOIR) jeopardize the due process rights of the children who come before the Court seeking asylum and special immigrant juvenile visas. These scheduling orders are particularly concerning considering the Trump Administration’s overt efforts to ramp up enforcement and other efforts to expedite removals.”

Read the letter from Rep. Ayanna Pressley (D-MA) here:

https://pressley.house.gov/sites/pressley.house.gov/files/2020-12-08%20Congresswoman%20Pressley_Letter%20to%20EOIR_RE_Scheduling_Orders%5B1%5D.pdf

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How “low can EOIR go” before the curtain finally falls on the dangerous and deadly ☠️ Clown Show🤡? Always have to wonder what drives so-called “civil servants” who exhibit a “Milleresque” cowardly desire to pick on kids!

Hey, hey, ho ho, The EOIR Clown Show 🤡 has got to go!

Due Process Forever!

PWS

12-09-20

KATY MURDZA 👩‍🏫“DE-GOBBLEDYGOOKS” EOIR CLOWN SHOW’S 🤡 PARTING SHOTS AT DUE PROCESS, RATIONAL COURT MANAGEMENT 🤮 — “Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.”

https://immigrationimpact.com/2020/12/03/eoir-rules-immigration-judges/#.X8qg9NhKhPY

Katy writes at Immigration Impact:

The Executive Office for Immigration Review (EOIR) has proposed two rules that would significantly decrease the due process rights of people in immigration court. Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.

While the rules are not likely to be finalized by the time President Biden takes office, they demonstrate the Trump administration’s continued commitment to dismantling the immigration system.

The first rule would severely limit the reopening of immigration cases after a judge enters an order of removal. Respondents or their attorneys routinely file motions to reopen because of previously unavailable evidence, changed country conditions, or a lack of proper notice of a hearing. This opportunity is crucial for people who are eligible for relief but were ordered deported for reasons beyond their control.

The rule would limit the reasons for which a case can be reopened, requiring significantly more evidence. This means that fewer people could overturn a deportation order, even if they now had another way to remain in the United States. The respondent would have to include their application for relief with the motion. Once their case is reopened, they would be barred from applying for any other kind of relief.

EOIR’s new rule would further limit case termination, a tool judges used in the past to remove low-priority cases from their dockets. It would also end nearly all discretionary stays of removal, which temporarily prevent a deportation in emergency situations.

Before the Board of Immigration Appeals would even consider an emergency stay of removal, immigrants would have to ask for a stay from U.S. Immigration and Customs Enforcement and wait up to five business days for a response. This delay could make the process practically useless in true emergencies.

The second rule would end most continuances in immigration court. Respondents and their attorneys, as well as attorneys for the Department of Homeland Security, frequently file motions for a continuance to request that an immigration judge delay a hearing.

Regulations currently allow judges to grant continuances if “good cause” exists, but do not provide a definition of “good cause.” For years, judges were allowed significant discretion in this area. A 2018 Attorney General decision limited the situations that were considered “good cause” for a continuance.

The proposed rule writes those restrictions into federal regulations, it would go even further by declaring that a wide variety of situations are not “good cause” for a continuance—even many situations where continuances are routinely granted under current rules.

For example, the new rule would severely limit continuances for immigrants who need to find a lawyer or appl for a form of relief outside of immigration court. Currently, judges are required to grant at least one continuance for respondents to find a lawyer if requested.

Under the proposed rule, immigration judges would not have to allow respondents time to find legal representation. Instead, they would be discouraged from giving an immigrant more time to find a lawyer. The only exception would be the rare cases in which a hearing occurs fewer than 30 days after the Notice to Appear is filed.

EOIR states that restricting continuances is necessary to decrease the over 1.2 million cases pending in the immigration court backlog. However, the answer to the backlog is not to throw due process out the window.

Eliminating docket-management tools could worsen the backlog.

Placing stricter requirements on these tools require judges to write longer justifications when they do grant them. Forcing immigrants to apply for relief in front of an immigration judge when they will likely be granted relief by U.S. Citizenship and Immigration Services is an unnecessary use of the judge’s time. Many continuances allow respondents to find an attorney, which can shorten overall case completion time. Denying continuances can also increase the appeal backlog.

The public can comment on both the first and second proposed rules through December 28, 2020. It is extremely unlikely that the Trump administration could meaningfully review comments, respond to them, and finalize these rules before Biden’s inauguration on January 20, 2021.

Instead of pursuing policies that restrict due process for people seeking relief, EOIR should restore a full set of discretionary tools to immigration judges, including administrative closure, termination, and continuances. Judges can only make fair decisions in each unique case if allowed to manage their own dockets.

FILED UNDER: EOIR, immigration judges

*********************

Thanks Katy!

And many thanks to my friend Judge Alex Manuel over at the ABA National Conference of the Administrative Law Judiciary for bringing Katy’s outstanding and “accessible” analysis to my attention.

Along with my NAIJ colleagues Judge (Retired) Joan Churchill and Judge Mimi Tsankov, Judge Manuel has been a tireless activist, forceful advocate, and supporter of judicial independence for Immigration Judges and all Administrative Judges in government.

As Katy clearly and cogently says, far from reducing the backlog, these beyond idiotic proposals would further add to the already astounding backlog that the “malicious incompetents” at DOJ/EOIR/DHS have built over the past four years. Their “redesign” of the Immigration Courts into a “deportation railroad” has been a total “train wreck” (without minimizing the actual lives ruined and futures lost in “America’s Star Chambers” and the lasting damage inflicted on our justice system and our democracy)!

Let’s go over the basic principle for rationalizing dockets and eliminating backlogs as I have recently stated in speeches and other public presentations:

Treating individuals with unfailing fairness, simple courtesy, and respect, granting relief wherever possible and at the lowest possible levels of the system speeds things up and promotes best practices and maximum efficiency without stomping on anyone’s rights. And, it saves lives!

The current Falls Church kakistocracy must be immediately removed and replaced with qualified members of the NDPA committed to the foregoing principle.

Agitate, agitate, agitate with everyone you know with any influence in the incoming Biden-Harris Administration to insure that the curtain comes down for good on the EOIR Clown Show and that the Immigration Courts are independently run by real judges and real judicial administration from the NDPA who are unswervingly committed to “guaranteeing fairness and due process for all!”

While we’re at it, compare Katy’s clear, succinct, understandable analysis with the turgid political gobbledegook that infects everything coming out of EOIR these days, from ridiculous regulations, to lousy anti-immigrant precedents, to nonsensical scheduling directives issued by the mid-level “clown apprentices” in the Falls Church circus! Obviously, when the Biden Administration and the NDPA reconstitute the EOIR public information function (A/K/A the “Politburo of Nativist Propaganda”) Katy should be high on the list of new faces who could help and support radical due process reform, innovation, and advancement at EOIR!

It’s not just a question of “repairing the damage.” It’s about unleashing creativity, innovation, and better, more progressive judging that not only will make the original “EOIR vision” a reality but will lead to long overdue improvements in the Article III Judiciary and throughout the American justice system! If there is anything the last four years have taught us, it’s that we can and must do better as a nation to achieve equal justice under law. With better judicial leaders from the NDPA in charge, EOIR can not just be part of the solution, but can lead the way to better justice for America!

Repeat after me, “Hey, hey, ho, ho, the EOIR Clown Show has got to go!” Then, let the Biden-Harris Transition know!

Due Process Forever!

PWS

12-06-20

🇺🇸“GOOD MORNING OHIO!” — MY KEYNOTE SPEECH TO AILA THIS MORNING 🗽— AN NDPA CALL TO ACTION! ⚖️— “The EOIR Clown Show Has Got To Go!”🤡👨🏻‍⚖️👎🏻

Friends, you know, and I know, what is the biggest crisis facing the American justice system today. One that undermines and threatens racial justice, social justice, equality before the law, voting rights, American values, and indeed the very foundations of our democratic institutions and our justice system.

It’s imperative that our incoming Administration and its leaders fully recognize the overwhelming importance and extreme urgency of immediately ending the ongoing, deadly, and dangerous “Clown Show” at EOIR – the Executive Office for Immigration Review.

Under the defeated but not yet departed regime, EOIR has been weaponized by White Nationalist nativists to function as America’s Star Chambers. Once envisioned by its founders, including me, as a potential “jewel in the crown” of American justice, EOIR now has become an ungodly nightmare of anti-due process, anti-immigrant propaganda, bad judges, bogus stats, uncontrollable backlogs, malicious incompetence, stupid regulations, daily doses of irrationality, abuse of private attorneys, and institution of “worst practices.” But, it doesn’t have to be that way! No, not at all!

With courage, bold action, and, most important, the right people in place in leadership and key judicial positions, EOIR can be fixed: sooner, not later. The Immigration Courts can, indeed, through teamwork and innovation become the world’s best courts guaranteeing fairness and due process for all, promoting a model of best practices for the Federal Judiciary as a whole, and providing a trained and ready source of due-process oriented judges with strong immigration, human rights, and equal justice backgrounds for the Article III Judiciary and public policy positions.

EOIR will then be positioned for the essential transition to an Article I independent U.S. Immigration Court when we have the votes.

But, it will require a far more progressive, visionary, and aggressive approach than past Democratic Administrations. We must immediately (and legally) clear out the deadwood and get the problem solvers from the New Due Process Army (“NDPA”) — mostly now in the NGO, clinical, and private sectors, folks like you and your colleagues — in place to fix this horribly broken system.

Read my complete speech here:

OHIO AILA

DUE PROCESS FOREVER!

PWS

12-04-20

⚔️🛡SIR JEFFREY ON THE LIFE-SAVING IMPORTANCE OF COMMENTING: Yeah, Preparing Regulatory Comments Is A Royal Pain In The Butt, Particularly When You Know The Malicious Incompetents In The White Nationalist Regime Won’t Pay Any Attention — But, Federal Judges 🧑🏽‍⚖️⚖️ Often Do!

https://www.google.com/url?q=https://www.jeffreyschase.com/blog/2020/12/2/pangea-v-dhs-the-power-of-comments&source=gmail-imap&ust=1607531177000000&usg=AOvVaw2vQATGEpuX0Oss0KcQPyVx

Pangea v. DHS: The Power of Comments

The constant stream of proposed regulations relating to our immigration laws has led to a continuous call to the public to submit comments to those rules. Individuals and organizations have responded in large numbers, in spite of the short 30 day comment windows this administrative has generally afforded. For those who have questioned the purpose of submitting comments or have wondered if the effort was worth it, I point to the recent decision of U.S. District Court Judge Susan Illston in the Northern District of California in Pangea Legal Services v. DHS granting a temporary restraining order against regulations that classify a wide range of crimes as bars to asylum eligibility.

As background, I would like to point to the explanation of the notice and comment procedures provided by U.S. District Court Judge Timothy J. Kelly last year in CAIR Coalition v. Trump. In that case, the Departments of Justice and Homeland Security attempted to bypass the process by publishing final rules with no opportunity to comment. Judge Kelly (who happens to be a Trump appointee) found that the avoidance of comments invalidated the regulations, explaining that the “procedures are not a mere formality. They are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment; (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.”

It is further worth noting that comments become part of the public record, and that the Administrative Procedures Act requires the agency to respond to all significant comments before the regulations can become final.

In accordance with this scheme, a brief comment period was provided as to the regulations covered in Pangea. The proposed rule sought to expand the category of “particularly serious crimes” that Congress has designated as a bar to asylum. Instead of allowing immigration judges to make such determinations on a case-by-case basis, the new rule sought to add a broad range of criminal conduct that the Departments of Justice and Homeland Security originally argued should categorically bar asylum as particularly serious crimes.

Commenters pointed out the flaws with this proposal, not the least of which was some of the offenses are not particularly serious. The crimes include harboring certain noncitizens (even if they are family members), or possessing or using false identity documents (for example, to work and support one’s family). These offenses are a far cry from the type of behavior that would pose such a threat to society as to outweigh the obligation to provide refugee protection. In publishing the final rule, the Departments did acknowledge these concerns raised in the comments. However, as explained above, more than mere acknowledgement was required.

Although Judge Illston found numerous reasons to support the granting of the temporary restraining order, one of those reasons was the Departments’ failure to respond to the above comments as required. As Judge Illston wrote, “when commenters pointed out that the new bars would include minor conduct and conduct that cannot be categorized as particularly serious or even dangerous, the Departments either declined to respond or else relied on their authority under § 1158(b)(2)(C).”

In other words, when the comments received caused the Departments to realize that their claimed justification for the rule under the statute’s “particularly serious crime” provision was problematic, instead of addressing those comments as they were required to do, the agencies instead replied “Particularly serious crimes? Is that what you thought we said? We meant they were similar to particularly serious crimes. Sorry for the confusion; let’s just say the changes fall under section 1158(b)(2)(C) for the sake of clarity.”

That section which the Departments now chose to rely on contains vague language allowing the Attorney General to establish by regulation “additional limitations and exceptions, consistent with this section” under which noncitizens might be ineligible for asylum. The Departments might not have noticed the words “consistent with this section,” which would seem to rule out their disregarding the fact that Congress had allowed only a few narrow statutory limitations to the right to asylum that tend to be consistent with international law. That might explain their reading of the clause as an invitation to impose any limitation on asylum the Departments desired, with no regard to international law obligations.

But besides from the permissibility of the Departments’ interpretation of the clause, Judge Illston categorized their tactics as evasion. The judge wrote that “the Departments initially stated they were relying in part on their authority to designate new offenses as particularly serious crimes. They then disclaimed reliance on that authority but said the new offenses were ‘similar to’ particularly serious crimes… And they declined to address commenters’ concerns that the Rule now bars crimes that do not rise to the level of particularly serious because, according to the Departments, they are not, in fact, designating new particularly serious crimes and any comments to that point ‘are outside the scope of this rulemaking.’”

Much thanks are owed to the lawyers and organizations who litigated and filed supporting briefs in Pangea; they managed to block yet another effort by this administration that sought to undermine the very nature of refugee protection. But thanks are also due to those who took the time and effort to submit comments. Hopefully, this will provide inspiration to continue to submit comments to new regulations still being proposed in these final days before what will hopefully be a return to normalcy, decency, and respect for the rule of law.

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Republished by permission.

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While many Federal Judges have been receptive and stopped illegal (and often immoral) regulations in their tracks, there is one key group of jurists so in the regime’s White Nationalist pocket that they don’t pay any much attention. That is the GOP majority on the Supremes, who have happily treated the Trump/Miller racist agenda of “Dred Scottification” of asylum seekers and other migrants with kid gloves. At the request of an “ethics free” Solicitor General, the majority has used corrupt procedural moves to interfere with the lower courts and advance the regime’s agenda while accepting obvious factually and legally inaccurate “pretexts” to “justify” the regime’s extreme, racist, dehumanizing actions.

Imagine all the positives for America that could be accomplished if all of the time and resources devoted to blocking an avalanche of illegal regulations and litigating them through the Federal courts were instead devoted to working for the public good. That’s actually what government is supposed to do. But, fascist regimes and their enablers, not so much.

Ultimately, better qualified, more scholarly, human, and humane Justices — judges distinguished for their wisdom, courage, humanity and constructive problem solving abilities rather than adherence to some far-right agenda — on the Supremes will be necessary for a better, more equal, America.

Life tenure means it will be a slow process of getting the right “Supreme Team” in place. But, one that needs to begin somewhere. A remade U.S. Immigration Court seems like a good starting place for building a better Federal Judiciary at all levels, bottom to top!

Due Process Forever!

PWS

12-03-20

Time for the NDPA ⚖️🗽🧑🏽‍⚖️👩‍⚖️ to replace the EOIR Clown Show🤡!

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